Negligent/Inadequate Security

Criminal activity can affect any of us. Negligent security is a species of premises liability dealing with civil redress for crimes and violent acts. It is the basis by which an individual injured by a third party tries to hold liable the owner or tenant of the property where a criminal injury is inflicted. The injury in a negligent security case may arise out of robbery, rape, assault, battery, or rape.

An injured person is able to bring a negligent security suit based on the duty imposed on landowners and possessors of property to offer reasonable security measures and protect lawful visitors from foreseeable crimes of third parties. Negligent security assumes that the crime could have been prevented or at least made less likely by using appropriate security measures.

Both commercial and residential landowners or possessors have been successfully sued for negligent security, but their duties may vary. For example, a student of a college is not able to provide adequate security measures at his or her dormitory, and so the college has a substantial duty to provide adequate security measures. Similarly, a commercial tenant, such as a retail business at a mall, may have a duty to protect those that shop at the business from foreseeable criminal attacks. On the other hand, a residential tenant may have control of what happens to a guest inside his or her apartment, but may not have a duty to take security measures to protect the guest in the apartment complex's parking lot.

Why sue the owner or possessor of the property rather than the person who committed the violent act or crime? Generally, it is easier for a visitor to locate the owner or possessor of property than a stranger who perpetrated a crime. Moreover, the owner or possessor is more likely to have insurance against which a judgment can be enforced so that the damages can actually be recovered.

What Does a Plaintiff Need to Prove?

Under the Restatement (Second) of Torts, a plaintiff suing for negligent security will need to show that the landowner or possessor failed to exercise reasonable care to discover similar prior criminal activities or failed to give adequate warnings so visitors could avoid injury. He or she will need to show that he or she was lawfully present on the defendant's property, the defendant breached its duty to offer reasonable security, the plaintiff was hurt because of a third party's acts that were reasonably foreseeable to the defendant, the plaintiff would not have been injured but for the defendant's breached duty, and the plaintiff incurred actual damages.

Foreseeability is a critical issue in negligent security cases. In most states, courts will determine foreseeability primarily based on whether there were prior, similar crimes in the same location that the owner or possessor knew or should have known about. If, for example, there were five prior rapes in a mall parking lot before the injuries at issue in a particular case, it is likely that the last rape would be considered foreseeable. On the other hand, if there were prior, nonviolent muggings but no rapes in the parking lot, a rape might not be found foreseeable. The court may also consider how frequently law enforcement has been called to a property, whether prior crimes were violent personal crimes or simply property crimes, and the closeness in time of the prior crimes to the injury at issue.

What Counts As Adequate Security?

Adequate security for a particular property will vary from case to case. Some common security features for violent personal crimes are adequately trained security patrols during business hours or when guests are expected to be at the property, appropriate lighting, functioning security hardware such as locks, and restricting the ability to hand out duplicate keys to common areas of residential complexes.

In some states, there are statutes that create an inference of no negligence when a particular type of business takes certain security measures. For example, in Florida, there is a presumption against liability for third party criminal attacks for convenience store owners that take certain precautions listed in Florida Statutes §§ 812.173 and 812.174. These precautions include installing a security camera system, putting a notice in the form of a sign that says the cash register contains less than $50, and using a drop safe.

Generally, a business should consult an attorney if there has been a crime on the premises to determine whether security measures should be boosted. Among other things, an attorney can help evaluate the extent to which a certain security measure may actually reduce the risk of a particular crime, as well as less tangible benefits of installing certain security measures, such as favorable public relations.